Technology outpaces the law every day. New features are being adopted much faster than law enforcement and the court systems can keep up. This is a given at the high-speed crossroads of hi-tech and capitalism.
Last fall, the federal courts covered some of the escaping ground as it relates to GPS tracking. An October editorial in The New York Times read, “In August, three judges on the United States Court of Appeals for the District of Columbia (two conservatives, one liberal) ruled unanimously—and correctly—that police violated the Constitution when they hid a GPS device on a person’s car and tracked his every move without a valid warrant. That person, Antoine Jones, was convicted of conspiracy to distribute crack and cocaine based on the tracking of his Jeep for four weeks.”
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In a landmark 1967 decision, the United States Supreme Court upheld the right to privacy under the Fourth Amendment, stating that “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”
In the Jones case, police used a 1983 precedent that allowed them to track a vehicle without a warrant using a beeper. The argument was grounded on the idea that anyone could have reasonably tracked in a similar way with or without the beeper. But GPS is different not “of degree but of kind,” the Appeals court ruled. The tracking in the Jones case could not have been done without GPS technology.
As the Times concluded, “Digital technology raises questions about differences between cyberspace and the physical world, which most search-and-seizure laws deal with. In showing why a powerful advance in technology calls for significantly greater protection of privacy, the three-judge panel provided an important example of how the law can respond to new circumstances.”
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We’re only going to see more of these types of cases and, hopefully, rulings like this that fall on the side of greater privacy protection. It’s important to remember that it’s not just hackers and bad guys, but law enforcement, corporations, marketers—businessmen and “good guys”—who are bending and redefining our definitions of privacy and privacy rights.
There is no playbook, as of yet, on what is allowed and what isn’t in drawing connections between the world of new technology born every day and the physical world of people. Yet we can watch it getting written, in real time.